Waipuka v New Zealand Police HC Wn CRI 2008-435-3

[2008] NZHC 2261

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-435-3

RITCHIE ALFRED WAIPUKA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 April 2008

Counsel:         J Blathwayt for Appellant

C Patterson for Respondent

Judgment:      10 April 2008

ORAL JUDGMENT OF ROINALD YOUNG J

[1]      The appellant, who seeks bail, is charged with being a male he assaulted a female; resisting police; assaulting police; two charges of wilful damage; and a charge of threatening to kill a police officer.  All the charges arise from the same incident, or following the initial incident, in early March this year at Masterton.

[2]      The police case is that they were called to the appellant’s address after a complaint of a domestic incident.  When they arrived they say the appellant was very angry.  The police then pepper-sprayed him.  The police say that the appellant then tackled a police constable to the ground and punched him, and then resisted arrest.

Later, the police say the appellant damaged a police car window and doorframe.

WAIPUKA V NEW ZEALAND POLICE HC WN CRI 2008-435-3  10 April 2008

Still later when he was in custody, it is said that he threatened to kill a police constable in the police cells in what one can only describe as a graphic way.   I should add that the appellant has pleaded not guilty to all of the charges and, in particular, says that he did not assault the female as alleged, that he was improperly pepper-sprayed by the police and the assaulting the police and resisting police and wilful damage charges all arose from his upset and pain at being pepper-sprayed. Finally, he denies threatening to kill a police constable.

[3]      In the District Court, the police opposed bail.   The defended date for the hearing of all charges is 7 May, in some three weeks time.  I will return to this aspect later in this decision.

[4]      Judge Thomas, in a comprehensive and careful reasoned decision, refused bail.  As to the facts, she acknowledged that the appellant was entitled to the presumption of innocence.  She correctly identified that s 12 of the Bail Act applied, shifting the onus to the appellant to satisfy the Judge that the appellant would, as relevant in this case, not commit an offence involving violence if bail was granted. In addition, she recorded the police assertion that there was a risk the appellant would interfere with witnesses given the domestic aspect of the alleged assault.

[5]      The Judge noted the appellant had committed 25 offences while on bail, including five breaches of Court sanctions during that time.   The Judge said that although the appellant had a bad history of offending, the last time he had been imprisoned was in 1994.

[6]      As the Judge got near the end of her decision, concluding that s 12 of the Bail Act applied and the onus had not been discharged, the Judge was handed a report from the victim advisor.   That set out the alleged victim’s (of the male assaults female charges) views on bail.  The report itself said that the victim had no concerns for her or her children’s safety, that the incident on the night when the police had come was a verbal disagreement and the alleged victim had left the house.  She told the victim advisor that she wanted the appellant to be granted bail.

[7]      The Judge, in her decision, acknowledged that further information.   In her words, the Judge “put the victim’s views into the mix”, tempered by her observation that there can be difficulty in ascertaining complaints’ views in domestic violence cases, she concluded that s 12 had still not been satisfied.

[8]      Mr Blathwayt, in comprehensive oral and written submissions before me, submitted that the Judge failed to take into account, firstly, that there had been a period of over seven years when the appellant had offended only in a minor way.

[9]      It is appropriate at this stage to look at the appellant’s previous history.  Prior to 1994 the appellant offended regularly, including very serious violent offending and property offending.  In 1994 he was convicted of manslaughter and sentenced to six years imprisonment.  It is now known when he was released, but there is a gap in offending between 1994 and 2000.  It seems probable, for most of that time, he was imprisoned.  Since 2000, the appellant has offended on 12 occasions, mostly, but not all, for violent offending, but none sufficiently serious to warrant imprisonment.  The Judge recognised this in her remarks and took into account the fact that he had not been imprisoned since his release from the 1994 offending.  I, therefore, reject the suggestion that the Judge did not properly take into account and balance the appellant’s past record.

[10]     The second criticism of the Judge’s decision was that she failed to effectively put sufficient weight on the report from the victim as to the victim’s views.

[11]     The note from the victim’s advisor does not expressly say that his partner said that no assault occurred, but it is probably a reasonable inference from her words, that there was a verbal disagreement, that there was no violence.  However, the Judge did have a police assertion, as part of a note made by a police officer, that the  appellant  had  admitted  assaulting  his  partner.    That,  of  course,  could  be sufficient, if believed, to convict the appellant.  I accept from counsel today that the appellant denies ever making that admission.

[12]     But the real point is that the Judge expressly put the victim’s views into the mix.   It was for her to assess the significance of the victim impact report, but it

certainly cannot be said that she did not consider it, or in this case reconsider her refusal to grant bail as a result of this additional material.  It is clear she did so.

[13]     The appellant generally says that the circumstances here are such that he has established on balance that he will not commit offences of violence if granted bail and, secondly, he says it is unfair in any event to keep him in custody for two months when he is unlikely to be imprisoned on these charges for that period.

[14]     The Judge, in my view, was clearly correct when she concluded that the appellant had not satisfied the onus that he would not commit a violent offence if released on bail.  This man has a long record of violent offending over 20 years.  It is true he has not been imprisoned since the six years imprisonment was imposed in

1994.  However, as I have said, since his release he has offended violently on at least eight occasions.  Every effort by Judges since 2000 have been made to keep him in the community with sentences of supervision, community work and fines.  He also has  a  long  history  of  offending  while  on  bail.     Again,  mostly  prior  to  his incarceration in 1994, but also since his release in 2000.  All these facts, which are independently verifiable and relate to his past, point towards the likelihood of offending violently while on bail.  Given it is for the appellant to show in a positive way why on balance he will not continue the pattern of the past, he simply has not done so in this case.  Given the appellant’s past, if convicted on all offences, a prison sentence, frankly, seems highly likely.   The threat to kill a police officer is, if proven, a very serious matter as is of course the male assaults female, especially given his propensity to do so.

[15]     For those reasons, in my view, the Judge was clearly correct, made no error of law or fact and the appeal, for those reasons, should be dismissed.

[16]     I wish to make some comments, however, about the proposition that this case may not proceed on 7 May.  I have found that the police were justified in their objection to bail, and that bail should not be granted.   But the proper course, as obviously the District Court recognised is to hear this case as quickly as possible. The case is set down for hearing on 7 May.  There is a suggestion that some of the police officers may not be present and that there may need to be an application for

an adjournment.  I make it clear in my view that if the police are not in a position to proceed on 7 May because of unavailability of their witnesses, then it would be improper of the police to continue to object to bail if, in the unlikely event, the charges on which they cannot proceed upon are not then dismissed.  It is not proper to keep an accused in custody for any longer than is absolutely necessary in the interests of the absence community.   Should, therefore, the case not proceed on 7

May because of the absence of police witnesses, or a failure by the police to have

witnesses available, then that would be a change in circumstance which, in my view, would almost certainly result in the granting of bail.

[17]     For the reasons given, therefore, the appeal will be dismissed.

“Ronald Young J”

Solicitors:

Crown Solicitor, Wellington